2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-23-2006

Jerrytone v. Musto

Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4145

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Recommended Citation

"Jerrytone v. Musto" (2006). 2006 Decisions. Paper 1731.

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1

NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 04-4145

____________

LEONARD JOSEPH JERRYTONE,

 Appellant

 v.

BIAGGIO MUSTO; RON MUSTO, JR.; SANDRA OSTROWSKI;

THOMAS BELL; KELLY MIKLUSCAK; MICHELE MIKLUSCAK;

HARRY O'NEILL; TAMMY ANN TUCKER; MARK KREBS;

WALTER GLOGOWSKI; EDWARD J. WALSH; GARY SWOREN;

MICHAEL VOGUH; ERNEST ASHBRIDGE; LUZERNE

INTERMEDIATE BOARD OF SCHOOL DIRECTORS, Individually;

ART PUPA; BRIAN DUNN; RANDY TOMASACCI; LUZERNE

INTERMEDIATE UNIT NO. 18; MODERNO ROSSI; BARBARA M.

YOUNGBLOOD; JACK SHEMA; ROBERT J. PARRY, III;

JOHN WILLIAMS; PETER HALESEY; WILLIAM BALCHUNE;

MICHAEL OSTROWSKI, Individually and as the

Executive Director of Luzerne Intermediate Unit 18

 ____________

Appeal from the United States District Court

For the Middle District of Pennsylvania

Civ. No.: 3:01-CV-1861

District Judge: Honorable A. Richard Caputo 

____________

Submitted Under Third Circuit LAR 34.1(a) January 13, 2005

Before: ROTH, FUENTES, and ROSENN, Circuit Judges.

(Filed: January 23, 2006)

____________
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OPINION OF THE COURT

____________

ROSENN, Circuit Judge.

Leonard Jerrytone appeals an order of the United States District Court for the

Middle District of Pennsylvania granting summary judgment to multiple defendants on

Jerrytone’s claims under 42 U.S.C. § 1983 for violations of his rights under the First,

Fourth, Fifth, and Fourteenth Amendments to the Constitution. Jerrytone also appeals the

District Court’s decision to decline supplemental jurisdiction over related state law

claims. 

Jerrytone was a public schoolteacher in Luzerne County until disciplinary action

was taken against him in March of 2000 pursuant to allegations that he had allowed

students to smoke marijuana in the classroom and behaved inappropriately with female

students. He resigned in September of 2001 and brought this action against the school

district, various employees of the school district, and law enforcement personnel involved

in the investigation and bringing of criminal charges against him. 

The District Court granted summary judgment to all of the defendants on the §

1983 claims and declined to exercise supplemental jurisdiction over the state law claims

by order dated September 30, 2004. Jerrytone argues that the District Court erred in

granting summary judgment on the § 1983 claims because the investigation of him was

based on “rumors and innuendos” generated pursuant to a coordinated effort by the

individual defendants that resulted in false criminal charges and constructive discharge. 
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He further argues that the District Court erred in dismissing his meritorious state law

claims. 

We disagree. The District Court did not err in granting summary judgment to the

defendants on the § 1983 claims because Jerrytone has not produced sufficient evidence

from which any reasonable jury could find that any of the defendants violated Jerrytone’s

constitutional rights. Furthermore, the District Court did not err in dismissing without

prejudice Jerrytone’s related state law tort claims because in a case in which the District

Court dismisses all of the federal claims over which it has original jurisdiction before

trial, it should also dismiss the state law claims. See 28 U.S.C. § 1396(c); United Mine

Workers v. Gibbs, 383 U.S. 715, 726 (1966). 

The District Court had jurisdiction over the § 1983 claims under 28 U.S.C. §

1331, and over the related state-law claims under 28 U.S.C. § 1367(a). In its order of

September 30, 2004, the District Court granted summary judgment to the defendants on

Jerrytone’s § 1983 claims and dismissed the state law claims without prejudice. We have

jurisdiction over final judgments of the District Courts pursuant to 28 U.S.C. § 1291. 

I.

From 1986 until September 25, 2001, Plaintiff-Appellant Leonard Jerrytone was

an employee at the Luzerne Intermediate Unit 18 (“LIU”) Alternative Learning Center

(“ALC”) in Plains, Pennsylvania. He was also a member of the Pennsylvania State

Education Association (“PSEA”) Union, which represents the teachers at ALC. As of

March, 2000, Jerrytone was a teacher at the ALC. On March 3, 2000, Tammy Tucker,
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Jerrytone’s teaching assistant, reported to Biagio Musto, the Educational Consultant to

ALC, and Sandra Ostrowski, ALC’s secretary, that she had observed students smoking

marijuana and using paper towels to inhale fumes from disinfectant fluid in Jerrytone’s

classroom. 

The next day, these allegations were reported to the Luzerne County District

Attorney’s office and the Plains Police Department. After meeting with school officials,

Detective Lieutenant Gary Sworen of the Luzerne County District Attorney’s office and

Edward Walsh, Chief of Police of the Plains Police Department, proceeded to interview

Tucker and several students who had purportedly witnessed students smoking marijuana

in Jerrytone’s classroom on prior occasions, behavior which he appeared to condone. 

Detective Sworen also discovered that there were paper towels and aerosol disinfectant

available in Jerrytone’s classroom, supporting Tucker’s claim that she had seen students

using the paper towels to inhale the fumes from the disinfectant. A custodian also stated

that the wastebaskets in Jerrytone’s classroom were often full of paper towels and that the

amount of paper towels available in Jerrytone’s classroom was excessive compared to

other classrooms. The custodian claimed that he had smelled marijuana in Jerrytone’s

classroom on previous occasions. 

During Detective Sworen’s investigation, a fifteen-year-old student of Jerrytone’s

told him that Jerrytone had made inappropriate sexual comments to her and other female

students, complimenting their figures and telling them he would like to see them “when

they got older,” and even giving the student a lingerie catalog and telling her that she
5

would look good in some of the items. The student also claimed that Jerrytone had

followed her around outside of the school. Detective Sworen observed the slogan: “Don’t

be educated; be sedated; stay out of school; go get drugs,” written on the classroom wall

and saw numerous aerosol cans and paper towels strewn around the classroom. 

As a result of this investigation, Jerrytone was suspended with pay the following

Monday, March 6, 2000. Approximately six weeks later, the District Attorney’s office

indicted him for endangering the welfare of children, corruption of minors, harassment,

and stalking. After he was indicted, Jerrytone was suspended without pay on May 1,

2000, and the criminal charges were reported to the Pennsylvania Department of

Education. Jerrytone was also informed that a hearing before the school board regarding

his case had been scheduled for May 18, 2000. By letter dated May 6, 2000, Jerrytone,

through his attorney, informed the Board that he was exercising his right to a hearing

before the school board. He requested a stay of the proceedings pending the outcome of

his criminal case. Jerrytone also pursued a grievance against the school board through his

union, PSEA, which he also requested be stayed pending the outcome of his criminal

case. 

On January 17, 2001, Jerrytone was found not guilty of all charges after a jury

trial in the Luzerne County Court of Common Pleas. After his criminal trial, Jerrytone

attempted to restart the grievance procedure with the Union, but because he had elected a

hearing before the school board, the grievance procedure under the collective bargaining

agreement was no longer available. Accordingly, a hearing before the school board was
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scheduled for September 25, 2001. 

On September 25, 2001, Jerrytone filed this case in the United States District

Court for the Middle District of Pennsylvania against the LIU Board of Directors, LIU,

several employees of ALC and LIU, and law enforcement personnel involved in

investigating and prosecuting the charges against him, asserting violations of his rights

under the First, Fourth, Fifth, and Fourteenth Amendments under § 1983, and related state

law claims. He also filed a motion seeking a temporary restraining order and an

injunction to stop the school board meeting. Judge Caputo denied the motion for the

injunction that day, and the hearing began as scheduled. Jerrytone did not attend, but

instead submitted a letter of resignation through his counsel.

In his complaint, Jerrytone claimed that his due process rights were violated by

(1) the failure to grant him a hearing before he was placed on paid leave, (2) the failure to

grant him a hearing before he was suspended without pay, (3) the failure to provide him

with a prompt post-suspension hearing, (4) the failure to hold an impartial

post-suspension hearing, and (5) constructively discharging him by coercing his letter of

resignation. He also alleged that defendant Michael Vough, the Assistant District

Attorney for Luzerne County, had defamed him in violation of § 1983. Jerrytone

brought related state law claims alleging intentional infliction of emotional distress, false

arrest, intentional interference with a contractual relationship, intentional interference

with a potential contractual relationship, and constructive discharge. 

The other defendants in the case are Thomas Bell, a former teacher at ALC; Gary
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Sworen, detective for the Luzerne County District Attorney’s Office; Edward Walsh,

Chief of Police, Plains Police Department; Michael Ostrowski, Executive Director of the

LIU, individually, and the LIU; Ron Musto, teacher at ALC; Sandra Ostrowski, secretary

at ALC; Biagio Musto, Educational Consultant to the LIU; Art Pupa, Director of Special

Education at LIU; the LIU Board of Directors, comprising the following individuals:

Ernest Ashbridge, Brian Dunn, Randy Tomasacci, Moderno Rossi, Barbara Youngblood,

Jack Shema, Robert J. Parry III, John Williams, Peter Halesey, and William Blachune. 

All defendants moved for summary judgment on all counts. The District Court

granted summary judgment to all defendants on the federal claims and declined to

exercise jurisdiction over the related state law claims.

II. 

We review a grant of summary judgment de novo, applying the same test as the

District Court. MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir. 2005).

Summary judgment should be awarded when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). All reasonable inferences must be

made in favor of the nonmoving party, and the court may not weigh the evidence or

assess credibility. Id. Viewing all of the evidence in this case in the light most favorable

to Jerrytone, we conclude that the District Court properly granted summary judgment to

all of the defendants because there are no issues of material fact that would allow a
8

reasonable jury to return a verdict for Jerrytone on any of his federal claims. C.N. v.

Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005).

We review the District Court’s decision to decline to exercise supplemental

jurisdiction over Jerrytone’s state law claims for abuse of discretion. Queen City Pizza,

Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 444 (3d Cir. 1997). 

In order to state a claim under § 1983, a plaintiff must allege that his constitutional

rights were violated by someone acting under color of state law. West v. Atkins, 487

U.S. 42, 48 (1988). The District Court did not err in granting summary judgment to

defendant Bell because he is not a state actor, nor was he acting under color of state law. 

Jerrytone alleged that Bell violated his constitutional rights by calling Detective Sworen

to speak to him about Jerrytone. Because Jerrytone produced no evidence that Bell had

conspired with state actors to deprive Jerrytone of his constitutional rights, the District

Court properly granted summary judgment to Bell. See Dennis v. Sparks, 449 U.S. 24,

27–28 (1980).

The District Court also properly granted summary judgment to defendant Vough

on Jerrytone’s First and Fourth Amendment claims. Prosecutors enjoy absolute immunity

for the decision to initiate a prosecution or dismiss charges, Kulwicki v. Dawson, 969

F.2d 1454, 1463–1464 (3d Cir. 2003), for evaluation of evidence collected by

investigators, Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993), and for failure to

conduct adequate investigation before filing charges, Kulwicki, 969 F.2d at 1463–1464. 

The District Court correctly concluded that Vough enjoyed absolute immunity for all of
9

the actions alleged by Jerrytone to have violated his constitutional rights. Jerrytone failed

to present any evidence demonstrating that Vough was inappropriately involved in the

investigation. Vough is also entitled to summary judgment on Jerrytone’s defamation

claim, which was based on unfavorable statements Vough made to the press after

Jerrytone was acquitted of criminal charges. Jerrytone failed to allege any injury to

liberty or property, a required component of an actionable defamation claim under §

1983. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). 

Nor did Jerrytone meet his burden of proof to demonstrate that his constitutional

rights were violated by Detective Sworen and Officer Walsh because the record

demonstrates that they had probable cause to arrest him. The investigation of Jerrytone

produced sufficient evidence, including statements from several witnesses alleging

criminal acts on the part of Jerrytone and corroborating circumstantial evidence, for a

finding of probable cause, even if he was later acquitted of the criminal charges. United

States v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990) (probable cause is satisfied if the facts

and circumstances within the arresting officer’s knowledge are sufficient to warrant a

reasonable person to believe that an offense has been committed). The District Court

noted that Jerrytone put forth no evidence that the students fabricated the statements, nor

that they were inaccurately recorded by the investigators. We agree with its conclusion

that under these circumstances, no reasonable jury could find that Sworen and Walsh

lacked probable cause to arrest Jerrytone. They were therefore entitled to summary

judgment. 
10

The District Court also granted summary judgment to Michael Ostrowski and the

LIU Board of Directors on Jerrytone’s due process claims under § 1983. These

defendants’ status as state actors is not in question. We agree with the District Court that

Jerrytone failed to establish sufficient evidence to support a finding that they deprived

him of a protected property or liberty interest without due process. See Mathews v.

Eldridge, 424 U.S. 319, 332 (1976). 

Due process does not require a fixed set of procedures in all circumstances. 

Rather, what process is due depends upon the private interest that is affected, the risk of

erroneous deprivation under current procedures, and the probable value, if any, of

additional procedural safeguards. These factors must be weighed against the

government’s interest in expediency and the burden of additional procedural safeguards. 

See Mathews, 424 U.S. at 334–335. 

Given the minimal property interest involved, Jerrytone’s due process rights were

not violated when he was placed on paid suspension without a prior hearing after

allegations of serious misconduct and criminal activity in his classroom arose from

credible sources. Compare Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545–546

(1985) (stating that employers may avoid due process concerns in cases in which

immediate suspension of an employee is necessary by placing that employee on paid,

rather than unpaid, leave); Edwards v. Cal. Univ. of Penn., 156 F.3d 488, 492 (3d Cir.

1988) (placement of tenured professor on paid leave did not implicate due process

concerns). As the District Court noted, “[t]he potential harm resulting from a
11

postponement in the removal of a teacher accused of misconduct in the classroom is

simply intolerable.” 

Nor did Jerrytone produce sufficient evidence from which a jury could find that

his due process rights were violated when LIU failed to provide him with a hearing prior

to placing him on unpaid leave after criminal charges were filed against him. Because of

the strength of the state’s interests in protecting students and maintaining public

confidence in the school system, it would have been “impractical to provide

predeprivation process.” Gilbert v. Homar, 520 U.S. 924, 930 (1997). Furthermore, an

immediate hearing would have been redundant because a judge had carefully determined

that there was probable cause for the criminal charges when the indictment was issued. 

See FDIC v. Mallen, 486 U.S. 230, 240 (1988) (due process did not require that indicted

bank employee be given a presuspension hearing). In this case, due process would have

been satisfied by a prompt postsuspension hearing, which was scheduled by LIU. 

Compare FDIC, 486 U.S. at 240 (postsuspension hearing was sufficient to satisfy due

process where government’s interest is important and there is substantial assurance that

the deprivation is not baseless or unwarranted); Gilbert, 520 U.S. at 930 (postdeprivation

process may satisfy due process when the state must act quickly or where it would be

impractical to provide predeprivation process). It was Jerrytone who requested that this

hearing be postponed pending resolution of his criminal charges.

When the hearing finally was to take place on September 25, 2001, Jerrytone did

not appear. Instead, he tendered his resignation. He argues that his termination was
12

forced because if he had not resigned, he would have lost his teaching license. But there

is no evidence that the outcome of the procedures available to him under Pennsylvania

law was a foregone conclusion. Jerrytone was provided with proper notice of the charges

against him and his right to a hearing and appeal under the law and the collective

bargaining agreement. That the hearing was labeled a “Termination Hearing” does not

mean that Jerrytone could not have been reinstated. Accordingly, Jerrytone has not met

his burden to demonstrate that he would not have been provided with an impartial

hearing. Nor did Jerrytone adduce any evidence that his resignation was procured by

misrepresentation, duress, or coercion. See Leheny v. City of Pittsburgh, 183 F.3d 220,

227–228 (3d Cir. 1999) (resignations of public employees presumed voluntary). 

Accordingly, Jerrytone has failed to create any material issue of fact whether he was

deprived of his right to due process. In addition, because Jerrytone had no substantive

due process right to employment at a public school, the District Court did not err in

dismissing his substantive due process claim. See Nicholas v. Penn. State Univ., 227

F.3d 133, 138 (3d Cir. 2000). 

The District Court also granted summary judgment to defendants Ron Musto,

Sandra Ostrowski, Art Pupa, and Biagio Musto on Jerrytone’s § 1983 claims. Even

assuming the truth of Jerrytone’s allegations against these defendants, all of whom had

subordinate roles at the ALC and LIU, there is no evidence that they violated, or

conspired to violate, Jerrytone’s constitutional rights with the various roles they played in

the course of Jerrytone’s suspension and eventual resignation. Accordingly, the District
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Court did not err in granting summary judgment to these defendants. 

Finally, the District Court did not abuse its discretion in dismissing Jerrytone’s

related state law claims without prejudice. 28 U.S.C. § 1367(c) provides that a District

Court may decline to exercise supplemental jurisdiction when it has dismissed all claims

over which it has original jurisdiction. That is precisely what happened here because the

District Court granted summary judgment to the defendants on all of Jerrytone’s federal

question claims. Accordingly, the District Court did not abuse its discretion in declining

to exercise supplemental jurisdiction over the remaining state law claims. United Mine

Workers, 282 U.S. at 726. 

III.

For the foregoing reasons, the judgment of the District Court granting summary

judgment to defendants Gary Sworen, Edward Walsh, Biagio Musto, Ron Musto, Michael

Vough, Sandra Ostrowski, Michael Ostrowski, Art Pupa, the LIU and its Board of

Directors, and Thomas Bell will be affirmed. Costs to be taxed against the appellant.